How the humble comma sank Najib’s SRC defence

 

Years ago, when I was working with the New Straits Times, I conducted journalism workshops for members of the public and university students. I also guided students on producing their own university newspapers.

The workshops were arranged by the NST’s newspaper in education unit.

One of the areas I invariably touched on at these workshops was the importance of correct punctuation, including the comma, because punctuation can and does change the meaning of a sentence.

Among the examples I used then was this sentence, commonly cited by those talking about punctuation, to add humour to the explanation: A woman without her man is nothing. I would ask participants to punctuate it.

There are two possibilities here:

A woman, without her man, is nothing.

A woman: without her, man is nothing.

The participants would laugh over it, of course. But I also hoped the importance of punctuation would stick in their mind.

The comma, for instance, is much more than a punctuation device to break up two clauses where a pause is needed, or separate a series of words denoting items in a sentence. It makes meaning clear.

Most of us pay scant attention to the nondescript comma and even those in journalism or the writing profession make mistakes in the placement of commas. I have had arguments in the past with some sub-editors who changed the placement of my commas.

Most times, the misplaced comma causes only some irritation to the discerning reader and there’s really no harm done.

Sometimes, however, a comma can spell trouble, as the defence team in former prime minister Najib Razak’s SRC international case found out recently.

One of the defence’s arguments as to why Najib could not have committed criminal breach of trust was sunk by a placement of a comma.

Before I explain, let me recap what happened on Dec 8. The Court of Appeal upheld High Court judge Mohd Nazlan Mohd Ghazali’s decision to convict Najib on all seven charges of abuse of power, criminal breach of trust (CBT) and money laundering involving RM42 million of SRC International funds.

Among the seven charges were three counts of CBT. The three charges were similar, except for the money involved, all of which totalled RM42 million.

Najib’s lead counsel Muhammad Shafee Abdullah had, in an earlier proceeding, told the three-member bench that Najib should not have been found guilty of CBT as he was never a director or a shadow director of SRC International Sdn Bhd. He said Nazlan had erred in labelling Najib a shadow director of SRC.

The bench had previously asked whether the charges would collapse if Najib had not been a director or shadow director, after noting that, “The main issue for the CBT is whether the appellant falls within the definition of director, ie shadow director.”

The Court of Appeal – chaired by Abdul Karim Abdul Jalil, sitting together with Has Zanah Mehat and Vazeer Alam Mydin Meera – in its judgment dealt at length on the issue of whether Najib was a director or shadow director and whether he was entrusted with property or entrusted with dominion over property of SRC International.

Section 402A of the Penal Code defines director in the following terms: “‘Director’ includes any person occupying the position of director of a company, by whatever name called, and includes a person who acts or issues directions or instructions in a manner in which directors of a company are accustomed to issue or act, and includes an alternate or substitute director, notwithstanding any defect in the appointment or qualification of such person.”

The Court of Appeal said: “Learned counsel for the appellant submits that the definition of ‘director’ in section 402A must be taken to mean that the phrase ‘…and includes a person who acts or issues directions or instructions in a manner in which directors of a company are accustomed to issue or act, …’ is subsumed into the preceding phrase that reads ‘includes any person occupying the position of director of a company, by whatever name called’.

“Thus, counsel for the appellant argues that the person who ‘…acts or issues directions or instructions in a manner in which directors of a company are accustomed to issue or act, …’ must already be a person who is ‘occupying the position of director of a company, by whatever name called’. Hence, the appellant is asking this court to read the definition of ‘director’ in a restrictive manner and limit it to only persons who hold some position in the company and upon whose directions or instructions the directors of the company are accustomed to act.”

Such an interpretation of the word “director”, the judges said, would lead to “absurdity”.

“We are in agreement with the learned trial judge that the words ‘and includes’ which is used thrice in the definition of ‘director’ in section 402A PC, is used in that manner to denote three different categories of persons who would be categorised as ‘director’ for the purposes of that section. Hence, the provisions in section 402A must be read disjunctively for each category after the words ‘and includes’, and when done so it gives rise to three separate and distinct limbs or categories of persons who would be regarded as ‘directors’, and they are:

(i) any person occupying the position of director of a company, by whatever name called,

(ii) a person who acts or issues directions or instructions in a manner in which directors of a company are accustomed to issue or act,

(iii) an alternate or substitute director, notwithstanding any defect in the appointment or qualification of such person.

“In so ruling, we find support from the decision of the Supreme Court in Dato Mohamed Hashim Shamsuddin v Attorney-General, Hong Kong [1986] 2 MLJ 112, where the apex court ruled that punctuation in any written law may be used as a guide to interpretation. Abdoolcader SCJ speaking for the Supreme Court said:

“The day is long past when the courts would pay no heed to punctuation in any written law [Hanlon v Law Society [1981] AC 124, 197-198 per Lord Lawry] and the presence or absence of a coma may be highly significant [Re Steel (deceased), Public Trustee v Christian Aid Society [1979] Ch 218; Marshall v Cottingham [1981] 3 AER 8, 21].”

In this regard, the three judges said, they agreed with ad hoc prosecutor V Sithambaram that the use of a comma before the words “and includes” in the definition of “director” in section 402A was “highly significant”.

“The comma followed by ‘and includes’ indicates that it refers to a different category of persons from the preceding one.”

They also agreed with Sithambaram’s contention that when a statute employed the expression “includes” to define some other words or expression, the intention was to leave the meaning of the expression defined open ended.

“Hence, when both the words “and includes” which follow a comma, are construed in the overall scheme of the definition of “director”, it is quite obvious that it is meant to be read disjunctively, thus giving rise to three separate categories of persons who are defined as directors for the purposes of this statutory definition.’

“The second category of persons in that definition are often referred to as shadow directors, who by their very nature usually lurk in the shadow without any formal position in the company, seeking shelter behind the de jure directors, and seldom hold themselves out as directors of the company. They largely operate clandestinely and without showing their hands.

“But often when the evidence is closely scrutinised we will find their hidden hands directing and instructing the directors to act in the manner that the shadow directors want them to. However, in this case the appellant’s hands were quite visible, and he was expressly and openly giving directions and instructions to the directors of SRC, which the directors became accustomed to follow. The evidence also shows that the appellant had supreme authority and control over SRC and its Board.”

It was clever of Sithambaram to use punctuation as a weapon in demolishing the defence’s argument and shoring up his own contention that Najib was for all intents and purposes the main man in the scheme of things.

Long ago I learned that judges must not only have an excellent understanding of the law, apart from other germane attributes, but also be highly proficient in the language used.

This brings to mind the beautifully crafted judgments of the late Eusoffe Abdoolcader, who was quoted above by the Court of Appeal judges. As a young journalist in Penang, I was in awe not just with his keen intellect but more so with his mastery of the English language.

What brilliance he brought to the craft of writing! His written judgments resembled literary works and I was spellbound by his use of alliteration and metaphor. They would also be peppered with Latin words. His exquisite use of the English language surpassed that of any journalist or writer I knew, and eclipsed mine.

Of course, he was a legal lion too.

Coming back to the SRC International judgment, it is clear that Sithambaram’s deft use of the comma argument helped sink the defence’s contention that Najib was never a “director” of the firm.

So, yes, do not look down or be indifferent to the humble comma. It packs a powerful punch. - FMT

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.